Employer can manipulate hours to reduce OT

Periodically, my office will have a mandatory staff meeting, either at lunch or after work. This results in overtime, however, our company makes us take that time off during that week by leaving early, either a day or two before the meeting or sometimes a day or two after the meeting, or even coming in later in the morning. Can they do this legally?

John J. Balitis

Fennemore Craig

The Fair Labor Standards Act (FLSA) dictates when an employer must pay overtime. Under this federal law, hourly workers are entitled to receive one and one-half times their regular rate of pay for all hours worked over 40 per workweek.

The FLSA defines the workweek as a consecutive seven-day period used by an employer to determine when its hourly workers are entitled to overtime pay. Under the FLSA, an employer is permitted to designate its workweek as it chooses, and many employers do so in order to minimize overtime liability.

For example, an employer that requires its employees to work five consecutive 10-hour shifts beginning every other Monday may or may not owe overtime pay depending on how the employer defines its workweek.

In a standard Monday through Sunday workweek scenario, the employer in this situation would owe each employee 10 hours of overtime for each multishift sequence. If, however, the employer adopted a Wednesday through Tuesday workweek, each employee’s 50 hours of time would be split between two workweeks, eliminating the employer’s need to pay overtime.

The flexibility that the FLSA affords an employer to stage its workweek extends to hours within the workweek itself. Absent a collective-bargaining agreement or other contract to the contrary, an employer is free to manipulate or limit its workers’ hours from week to week in order to avoid overtime liability.

In your case, the employer’s practice of offsetting extra hours worked by forced time off appears to be lawful and within FLSA parameters.

Rose McCaffrey

Kelly McCoy PLC

Your employer can reduce your work hours to avoid paying overtime provided you are compensated for all hours actually worked.

Non-exempt employees receive overtime compensation at 1½- times your rate of pay for any hours worked over 40 hours in a workweek. Under the FLSA, non-exempt employees must be compensated for all hours the employee was “suffered or permitted” to work. Thus, employers must compensate non-exempt employees for all hours worked, regardless of the reason.

Here, your employer requires that you reduce your hours during the workweek in order to avoid overtime payment for a mandatory meeting. Thus, if you are a non-exempt employee, your employer must compensate you for all the hours you perform work. It is unlawful for your employer to reduce your pay by cutting your work hours while still requiring that you perform work in an effort to avoid paying overtime. For example, it would be unlawful to require you to clock out early but still mandate that you work without compensation.

Similarly, your employer may not require you to use personal time for attending the mandatory meeting. Your employer is likely operating lawfully provided that you are being paid for all hours worked.

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